Common use of Conduct of the Businesses Clause in Contracts

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a), from the date hereof until the Closing Date, Seller shall use its commercially reasonable efforts to carry on the Businesses according to their ordinary course of business and substantially in the same manner as currently conducted, to keep available the services of their officers and employees, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships of the Businesses with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Buyer, on and after the Closing Date, the Businesses and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders (or other equityholders, as applicable), in each case prior to the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. (b) From the date hereof until the Closing Date, except as otherwise expressly provided for by this Agreement, or consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller (i) shall not, and shall not permit the Company or the Sold Subsidiaries to, take any action which, if taken after the date of the Latest Balance Sheet, would be required to be disclosed on Schedule 4.07 pursuant to Section 4.07 and (ii) shall cause the Company and the Sold Subsidiaries to make, capital expenditures in an aggregate amount of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending on the Closing Date (pro-rated for any partial months during such period). (c) The foregoing provisions of this Section 6.01 notwithstanding: (i) prior to the Closing, Seller shall transfer, convey and deliver, or shall cause the transfer, conveyance and delivery of, all right, title and interest to each Excluded Subsidiary to Seller (the "Excluded Subsidiary Transfer") (and, in connection with the Excluded Subsidiary Transfer, Seller may, in its sole discretion, change the corporate form, or cause to be changed the corporate form, of any Excluded Subsidiary, and the form of any such change shall be in the sole discretion of Seller); and (ii) prior to the Closing, H&H Group and Seller shall, and shall cause the Company and the Sold Subsidiaries to, consummate the Reorganization Transactions.

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a), from From the date hereof of this Agreement until the Closing Date, Seller the Sellers shall conduct the Businesses in the ordinary and normal course of business, consistent with past practice; make ordinary marketing, advertising, promotional and other budgeted expenditures and implement ordinary pricing and promotional strategies in amounts generally comparable with the level of such strategies for the 12-month period ended December 31, 2006; and use its commercially reasonable efforts to carry on preserve and maintain the Businesses according to their ordinary course of business ongoing operations, organization and substantially in the same manner as currently conducted, to keep available the services of their officers and employees, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships assets of the Businesses with its suppliersBusiness and maintain the goodwill of the Businesses’ franchisees, customers, distributors customers and others having business relationships relations with it with a view toward preserving for Buyerthe Sellers. Further, on and after without limiting the Closing Dategenerality of the foregoing, during the Businesses and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders (or other equityholders, as applicable), in each case prior to the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. (b) From period from the date hereof until to the Closing Date, except as may be first approved by Buyer in writing, or as is otherwise expressly provided for permitted or required by this Agreement, neither Seller shall: (a) Cancel, encumber, or consented in any way discharge, terminate, adversely modify or amend or impair any Assumed Contract or enter into, modify, amend or terminate any Material Contract, other than in the ordinary course of business consistent with past practice, or commit any act or fail to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller (i) shall not, and shall not permit the Company or the Sold Subsidiaries to, take any action whichthat would cause a material breach of any such Assumed Contract. (b) Waive, if taken modify, alter, reduce or compromise any amounts payable by any Franchisee, except for amounts due and owing to either Seller prior to the Closing; provided, that such action will not waive, modify, alter, reduce or compromise any amount payable by the Franchisee to Buyer on or after the date of the Latest Balance Sheet, would be required to be disclosed on Schedule 4.07 pursuant to Section 4.07 and (ii) shall cause the Company and the Sold Subsidiaries to make, capital expenditures in an aggregate amount of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending on the Closing Date (pro-rated for any partial months during such period)Date. (c) The foregoing provisions Sell or dispose of any of the Purchased Assets, except for sales of inventory, immaterial sales or other dispositions, each in the ordinary course of business consistent with past practice. (d) Create or suffer or permit the creation of any Encumbrance (other than Permitted Encumbrances) on any of the Purchased Assets or with respect thereto, unless such Encumbrance will be discharged prior to the Closing. (e) Implement any layoffs that could implicate the WARN Act. (f) Take any action that would prevent either Seller from consummating the transactions contemplated in this Section 6.01 notwithstanding:Agreement. (g) Knowingly violate any applicable Legal Requirement. (h) Make any capital commitment, individually or in the aggregate, in excess of $25,000, other than those to be paid for in full prior to the Closing and entering into and making payments under the Filter Contract. (i) prior to the Closing, Seller shall transfer, convey and deliverTake, or shall cause fail to take, any other action which would reasonably be expected to result in a material breach or inaccuracy in any of the transferrepresentations or warranties of the Sellers contained in this Agreement. (j) Enter into any transaction whereby either Seller receives an advance or lump sum payment that provides value or a discount to future value for a period in excess of six (6) months. (k) Enter into any Real Property Lease. (l) Agree or commit, conveyance and delivery ofwhether in writing or otherwise, all right, title and interest to each Excluded Subsidiary to Seller (take any of the "Excluded Subsidiary Transfer") (and, in connection with the Excluded Subsidiary Transfer, Seller may, in its sole discretion, change the corporate form, or cause to be changed the corporate form, of any Excluded Subsidiary, and the form of any such change shall be actions specified in the sole discretion of Seller); and (ii) prior to the Closing, H&H Group and Seller shall, and shall cause the Company and the Sold Subsidiaries to, consummate the Reorganization Transactionsforegoing clauses.

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a), from the date hereof until the Closing Date, Seller shall use its commercially reasonable efforts to carry on the Businesses according to their ordinary course of business and substantially in the same manner as currently conducted, to keep available the services of their officers and employees, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships of the Businesses with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Buyer, on From and after the Closing Date, the Businesses date of this Agreement and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders (or other equityholders, as applicable), in each case prior to the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. (b) From the date hereof until the Closing Date, except as set forth on SCHEDULE 7.2 or as otherwise expressly provided for contemplated by this AgreementAgreement or as the Buyer shall otherwise consent to in writing, each Seller will, with respect to its Business, and each Executive Shareholder will cause each Seller in which he or his Affiliates have any direct or indirect ownership interest to: (a) carry on its Business in the ordinary course in a manner consistent with past practice, including without limitation by keeping in full force and effect insurance comparable in amount and scope to the coverage maintained by it (or on behalf of it) on the date hereof, not cancel any debts or claims, or consented waive or release any rights material to such Business relating to the operations of such Business, or default on any material obligation relating to the operations of its Business; (b) not permit all or any of the Purchased Property (real or personal, tangible or intangible) to be sold, licensed or subjected to any Encumbrance (other than a Permitted Encumbrance) except in writing by dispositions of inventory or of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practices; (c) exercise all Best Efforts to maintain and preserve for the Buyer its relationships with customers, suppliers, managers, Employees, Network Physicians, Consultants, parties to Third Party Payor Agreements and actively sought prospective parties to Third Party Payor Agreements (including, without limitation PruCare) and others having business relationships with the Business; (d) not acquire any assets or properties, or enter into any other transaction, other than in the ordinary course of business consistent with past practice and which consent shall does not be unreasonably withheldrequire payment of aggregate amounts exceeding $10,000; (e) not enter into any new (or amend any existing) Plan, conditioned including, any employee benefit plan, program or delayed)arrangement or any new (or amend any existing) employment, Seller independent contractor, severance or consulting agreement, grant any general increase in the compensation of officers or Employees (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) or grant any increase in the compensation payable or to become payable to any Network Physician, Consultant or Employee, except (i) shall notin accordance with pre-existing contractual provisions or consistent with past practice, and shall not permit the Company or the Sold Subsidiaries to, take any action which, if taken after the date of the Latest Balance Sheet, would be required to be disclosed on Schedule 4.07 pursuant to Section 4.07 and (ii) shall cause increases on an annual basis for the Company and the Sold Subsidiaries 1997 calendar year up to make, capital expenditures in an aggregate a maximum amount of at least seventy-five percent in excess of such Person's aggregate compensation for the 1996 calendar year and (75%iii) in respect of the total dollar amount Executive Shareholders, as permitted in Section 7.2(i)(B) below; 34 (f) not issue, grant or sell any capital stock, partnership interests, options, or other right to purchase any equity interests in such Seller, or issue any security convertible into such capital stock, partnership interests or equity interests, or enter into any subscription contract or other arrangements obligating such Seller to issue or sell any of budgeted the foregoing, or redeem, purchase or otherwise acquire any such capital expenditures stock or equity interests; (g) not make or commit to make any capital expenditure except as expressly contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending on the Closing Date Information Technologies Budget, other than ordinary repairs or maintenance; (pro-rated for h) not pay, lend or advance any partial months during such period). (c) The foregoing provisions amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of this Section 6.01 notwithstanding: its Affiliates; (i) prior to the Closingnot declare, Seller shall transferset aside, convey and deliverpay or make any dividend or other distribution or payment (whether in cash, stock, interests, equity or property) with respect to, or shall cause purchase or redeem, any shares of the transfer, conveyance and delivery of, all right, title and interest capital stock or any partnership interests or other equity interests (including profit sharing plans or distributions relating to each Excluded Subsidiary to Seller (the "Excluded Subsidiary Transfer"such Seller's financial results) (and, in connection with the Excluded Subsidiary Transfer, Seller may, in its sole discretion, change the corporate formof such Seller, or cause to be changed otherwise withdraw any cash from such Seller for the corporate form, direct or indirect benefit of any Excluded Subsidiary, and the form holders of any such change shares or interests or for any third party, or make or agree to make any other payments to any Shareholder or any of his or her Affiliates; PROVIDED, HOWEVER, that nothing set forth in this Section 7.2(i) shall be prohibit cash distributions to the extent that after giving effect to such cash distributions the Sellers still have at least $1,000,000 in Unrestricted Cash in the sole discretion aggregate; (j) not make any change in any method of Seller)accounting or accounting principle, method, estimate or practice except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable except in the ordinary course of business consistent with past practice; and (iik) prior not settle, release or forgive any claim or litigation or waive any right thereto; (l) not make, enter into, modify, amend or terminate any Contract, including any Third Party Payor Agreement or bid with respect to any of the ClosingBusinesses; (m) not defer the payment of any expense or liability, H&H Group or prepay any expense or liability, in anticipation of the consummation of the transactions contemplated hereby; (n) not accelerate the collection of any accounts receivable or any other amounts owed to it; (o) not decrease by a material amount the quantity of Equipment and Seller shallMachinery or Inventory maintained for use in its Business; (p) discharge or satisfy all Encumbrances and pay or satisfy all obligations or liabilities (whether absolute, accrued, contingent or otherwise) arising from the operation of its Business in a timely manner, other than liabilities being contested in good faith and for which adequate reserves have been provided, each of which is set forth on SCHEDULE 5.6(B)(13) hereof, and shall Permitted Encumbrances; (q) continue to maintain the Purchased Property in accordance with present practice; and (r) not enter into any agreement or make any commitment not in compliance with any of the foregoing and not take any other action that would cause any of the Company representations and the Sold Subsidiaries to, consummate the Reorganization Transactionswarranties made by any Seller in this Agreement not to remain true and correct.

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a), from the date hereof until the Closing Date, Seller shall use its commercially reasonable efforts to carry on the Businesses according to their ordinary course of business and substantially in the same manner as currently conducted, to keep available the services of their officers and employees, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships of the Businesses with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Buyer, on From and after the Closing Date, the Businesses date of this Agreement and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders (or other equityholders, as applicable), in each case prior to the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. (b) From the date hereof until the Closing Date, except as set forth on Schedule 7.2 or as otherwise expressly provided for contemplated by this Agreement, Agreement or consented as the Buyer shall otherwise consent to in writing by Buyer (which consent shall not be unreasonably withheldwriting, conditioned or delayed)each Seller will, Seller (i) shall notwith respect to its Business, and shall not permit each Executive Shareholder will cause each Seller in which he or his Affiliates have any direct or indirect ownership interest to: (a) carry on its Business in the Company ordinary course in a manner consistent with past practice, including without limitation by keeping in full force and effect insurance comparable in amount and scope to the coverage maintained by it (or the Sold Subsidiaries to, take any action which, if taken after the date on behalf of the Latest Balance Sheet, would be required to be disclosed on Schedule 4.07 pursuant to Section 4.07 and (iiit) shall cause the Company and the Sold Subsidiaries to make, capital expenditures in an aggregate amount of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending hereof, not cancel any debts or claims, or waive or release any rights material to such Business relating to the operations of such Business, or default on any material obligation relating to the Closing Date operations of its Business; (prob) not permit all or any of the Purchased Property o (real or personal, tangible or intangible) to be sold, licensed or subjected to any Encumbrance (other than a Permitted Encumbrance) except in dispositions of inventory or of worn-rated out or obsolete equipment for any partial months during such period).fair or reasonable value in the ordinary course of business consistent with past practices; (c) The foregoing exercise all Best Efforts to maintain and preserve for the Buyer its relationships with customers, suppliers, managers, Employees, Network Physicians, Consultants, parties to Third Party Payor Agreements and actively sought prospective Parties to Third Party Pavor Agreements (including, without llmlcatlon ~rucare) xxx owners nav1ng Business relationships with the Business; (d) not acquire any assets or properties, or enter into any other transaction, other than in the ordinary course of business consistent with past practice and which does not require payment of aggregate amounts exceeding $10,000; (e) not enter into any new (or amend any existing) Plan, including, any employee benefit plan, program or arrangement or any new (or amend any existing) employment, independent contractor, severance or consulting agreement, grant any general increase in the compensation of officers or Employees (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) or grant any increase in the compensation payable or to become payable to any Network Physician, Consultant or Employee, except (i) in accordance with pre-existing contractual provisions or consistent with past practice, (ii) increases on an annual basis for the 1997 calendar year up to a maximum amount of this five percent in excess of such Person's aggregate compensation for the 1996 calendar year and (iii) in respect of the Executive Shareholders, as permitted in Section 6.01 notwithstanding:7.2(i)(B) below; (f) not issue, grant or sell any capital stock, partnership interests, options, or other right to purchase any equity interests in such Seller, or issue any security convertible into such capital stock, partnership interests or equity interests, or enter into any subscription contract or other arrangements obligating such Seller to issue or sell any of the foregoing, or redeem, purchase or otherwise acquire any such capital stock or equity interests; (g) not make or commit to make any capital expenditure except as expressly contemplated by the Information Technologies Budget, other than ordinary repairs or maintenance; (h) not pay, lend or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of its Affiliates; (i) prior to the Closingnot declare, Seller shall transferset aside, convey and deliverpay or make any dividend or other distribution or payment (whether in cash, stock, interests, o equity or property) with respect to, or shall cause purchase or redeem, any shares of the transfer, conveyance and delivery of, all right, title and interest capital stock or any partnership interests or other equity interests (including profit sharing plans or distributions relating to each Excluded Subsidiary to Seller (the "Excluded Subsidiary Transfer"such Seller's financial results) (and, in connection with the Excluded Subsidiary Transfer, Seller may, in its sole discretion, change the corporate formof such Seller, or cause to be changed otherwise withdraw any cash from such Seller for the corporate form, direct or indirect benefit of any Excluded Subsidiary, and the form holders of any such change shares or interests or for any third party, or make or agree to make any other payments to any Shareholder or any of his or her Affiliates; provided, however, that nothing set forth in this Section 7.2(i) shall be prohibit cash distributions to the extent that after giving effect to such cash distributions the Sellers still have at least $1,000,000 in Unrestricted Cash in the sole discretion aggregate; (j) not make any change in any method of Seller)accounting or accounting principle, method, estimate or practice except for any such change required by reason of a concurrent change in GAAP, or write down the value of any inventory or write off as uncollectible any accounts receivable except in the ordinary course of business consistent with past practice; (k) not settle, release or forgive any claim or litigation or waive any right thereto; (l) not make, enter into, modify, amend or terminate any Contract, including any Third Party Payor Agreement or bid with respect to any of the Businesses; (m) not defer the payment of any expense or liability, or prepay any expense or liability, in anticipation of the consummation of the transactions contemplated hereby; (n) not accelerate the collection of any accounts receivable or any other amounts owed to it; (o) not decrease by a material amount the quantity of Equipment and Machinery or Inventory maintained for use in its Business; (p) discharge or satisfy all Encumbrances and pay or satisfy all obligations or liabilities (whether absolute, accrued, contingent or otherwise) arising from the operation of its Business in a timely manner, other than liabilities being contested in good faith and for which adequate reserves have been provided, each of which is set forth on Schedule 5.6(b)(13) hereof, and Permitted Encumbrances; (q) continue to maintain the Purchased Property in accordance with present practice; and (iir) prior not enter into any agreement or make any commitment not in compliance with any of the foregoing and not take any other action that would cause any of the representations and warranties made by any Seller in this Agreement not to the Closing, H&H Group remain true and Seller shall, and shall cause the Company and the Sold Subsidiaries to, consummate the Reorganization Transactionscorrect.

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a), from the date hereof until the Closing Date, Seller shall use its commercially reasonable efforts to carry on the Businesses according to their ordinary course of business and substantially in the same manner as currently conducted, to keep available the services of their officers and employees, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships of the Businesses with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Buyer, on From and after the Closing Date, the Businesses date of this Agreement and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders (or other equityholders, as applicable), in each case prior to the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. (b) From the date hereof until the Closing Date, except as set forth on SCHEDULE 7.2 or as otherwise expressly provided for contemplated by this Agreement, Agreement or consented as the Buyer shall otherwise consent to in writing by Buyer (which consent shall not be unreasonably withheldwriting, conditioned or delayed)each Seller will, Seller (i) shall notwith respect to its Business, and shall not permit each Executive Shareholder will cause each Seller in which he or his Affiliates have any direct or indirect ownership interest to: (a) carry on its Business in the Company ordinary course in a manner consistent with past practice, including without limitation by keeping in full force and effect insurance comparable in amount and scope to the coverage maintained by it (or the Sold Subsidiaries to, take any action which, if taken after the date on behalf of the Latest Balance Sheet, would be required to be disclosed on Schedule 4.07 pursuant to Section 4.07 and (iiit) shall cause the Company and the Sold Subsidiaries to make, capital expenditures in an aggregate amount of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending hereof, not cancel any debts or claims, or waive or release any rights material to such Business relating to the operations of such Business, or default on any material obligation relating to the Closing Date operations of its Business; (prob) not permit all or any of the Purchased Property (real or personal, tangible or intangible) to be sold, licensed or subjected to any Encumbrance (other than a Permitted Encumbrance) except in dispositions of inventory or of worn-rated out or obsolete equipment for any partial months during such period).fair or reasonable value in the ordinary course of business consistent with past practices; (c) The foregoing provisions exercise all Best Efforts to maintain and preserve for the Buyer its relationships with customers, suppliers, managers, Employees, Network Physicians, Consultants, parties to Third Party Payor Agreements and actively sought prospective parties to Third Party Payor Agreements (including, without limitation PruCare) and others having business relationships with the Business; (d) not acquire any assets or properties, or enter into any other transaction, other than in the ordinary course of this Section 6.01 notwithstanding:business consistent with past practice and which does not require payment of aggregate amounts exceeding $10,000; (e) not enter into any new (or amend any existing) Plan, including, any employee benefit plan, program or arrangement or any new (or amend any existing) employment, independent contractor, severance or consulting agreement, grant any general increase in the compensation of officers or Employees (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) or grant any increase in the compensation payable or to become payable to any Network Physician, Consultant or Employee, except (i) prior to the Closingin accordance with pre-existing contractual provisions or consistent with past practice, Seller shall transfer, convey and deliver, or shall cause the transfer, conveyance and delivery of, all right, title and interest to each Excluded Subsidiary to Seller (the "Excluded Subsidiary Transfer") (and, in connection with the Excluded Subsidiary Transfer, Seller may, in its sole discretion, change the corporate form, or cause to be changed the corporate form, of any Excluded Subsidiary, and the form of any such change shall be in the sole discretion of Seller); and (ii) prior increases on an annual basis for the 1997 calendar year up to a maximum amount of five percent in excess of such Person's aggregate compensation for the Closing1996 calendar year and (iii) in respect of the Executive Shareholders, H&H Group and as permitted in Section 7.2(i)(B) below; (f) not issue, grant or sell any capital stock, partnership interests, options, or other right to purchase any equity interests in such Seller, or issue any security convertible into such capital stock, partnership interests or equity interests, or enter into any subscription contract or other arrangements obligating such Seller shallto issue or sell any of the foregoing, and shall cause the Company and the Sold Subsidiaries toor redeem, consummate the Reorganization Transactions.purchase or otherwise acquire any such capital stock or equity interests;

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a), ALJ and Alon Assets covenant and agree that from the date hereof until the Closing Date, Seller shall use its commercially reasonable efforts to carry on the Businesses according to their ordinary course of business and substantially in the same manner as currently conducted, to keep available the services of their officers and employees, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships of the Businesses with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Buyer, on and after the Closing Date, the Businesses execution of this Agreement and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders (or other equityholders, as applicable), in each case prior to until the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. except (bi) From the date hereof until the Closing Date, except as otherwise expressly provided for contemplated by this AgreementAgreement (including any Internal Reorganization Transactions), (ii) as required by applicable Law or consented to in writing by Buyer (iii) with the prior written consent of the Partnership (which consent shall not be unreasonably withheld, conditioned or delayed)): (a) Neither ALJ nor Alon Assets will, Seller (i) shall not, and shall not nor will they permit the Company or the Sold any of ALJ’s other Subsidiaries to, take sell, transfer, assign, convey or otherwise dispose of any action which, if taken after the date of the Latest Balance SheetContributed Interests or Refining Assets, would be required other than in the ordinary course of business consistent with past practice; (b) Neither ALJ nor Alon Assets will, nor will they permit any of ALJ’s other Subsidiaries to, issue, sell or deliver any capital stock, membership interests or other equity securities of ARKS or issue or sell any securities convertible into, or options with respect to, or warrants to be disclosed on Schedule 4.07 pursuant purchase or rights to Section 4.07 and (ii) shall cause the Company and the Sold Subsidiaries to makesubscribe for, any capital expenditures in an aggregate amount stock, limited liability company interests or other equity securities of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending on the Closing Date (pro-rated for any partial months during such period).ARKS; (c) The foregoing provisions Each of ALJ and Alon Assets will, and will cause each of their respective Affiliates to, use commercially reasonable efforts to maintain the applicable Refining Assets in such working order and condition as is consistent with past practice; (d) Each of ALJ and Alon Assets will, and will cause each of their respective Affiliates to, use commercially reasonable efforts to, conduct the Business in the ordinary course consistent with past practices; (e) Each of ALJ and Alon Assets will, and will cause each of their respective Affiliates to, use commercially reasonable efforts to, preserve its relationships with customers, suppliers, licensors, licensees, advertisers, distributors, shippers and others having business dealings relating to the Business; (f) Neither ALJ nor Alon Assets will, nor will they permit their respective Affiliates to, permit any Lien to be imposed on the Refining Assets, other than Permitted Liens, or the Contributed Interests; (g) Neither ALJ nor Alon Assets will, nor will they permit their respective Affiliates to, accelerate, delay or postpone the payment of any Liabilities or the collection of any payment, related to the Business or the Refining Assets that are, individually or in the aggregate, material; (h) Neither ALJ nor Alon Assets will, nor will they permit their respective Affiliates to, amend, modify or terminate any Material Contract, or otherwise waive, release or assign any rights, claims or benefits thereunder, or enter into any Contract that, if entered into prior to the date of this Section 6.01 notwithstanding:Agreement, would constitute a Material Contract (i) prior Neither ALJ nor Alon Assets will, nor will they permit their respective Affiliates to, take or omit to the Closingtake any action that would reasonably be expected to result in a Material Adverse Effect; (j) Neither ALJ nor Alon Assets will, Seller shall transfernor will they permit their respective Affiliates to, convey and deliverdeclare or pay a dividend on, or shall cause the transfer, conveyance and delivery make any other distribution in respect of, all rightARKS’ equity securities; (k) Neither ALJ nor Alon Assets will, title and nor will they permit their respective Affiliates to cause ARKS to (A) hire any employee or (B) become liable with respect to any Plan; (l) Neither ALJ nor Alon Assets will, nor will they permit their respective Affiliates to, terminate or cancel any material insurance policy naming ARKS as its beneficiary or a loss payee; (m) Neither ALJ nor Alon Assets will, nor will they permit their respective Affiliates to cause ARKS to, make or change any material Tax election (except as expressly contemplated by the Internal Reorganization Transaction), enter into any agreement relating to Taxes, including closing agreements with any Governmental Authority or settle or compromise any material Tax claim or liability; (n) Neither ALJ nor Alon Assets will, nor will they permit their respective Affiliates to, cause ARKS to acquire or agree to acquire in any manner (whether by merger or consolidation, the purchase of an equity interest to each Excluded Subsidiary to Seller (in or a material portion of the "Excluded Subsidiary Transfer"assets of or otherwise) (andany business or any corporation, in connection with the Excluded Subsidiary Transferpartnership, Seller may, in its sole discretion, change the corporate form, association or cause to be changed the corporate form, other business organization or division thereof of any Excluded Subsidiary, and the form of any such change shall be in the sole discretion of Seller)other Person; and (iio) prior to the ClosingNeither ALJ nor Alon Assets will, H&H Group and Seller shall, and shall cause the Company and the Sold Subsidiaries nor will they permit their respective Affiliates to, consummate the Reorganization Transactionsagree in writing or otherwise to do anything contained in this Section 5.1.

Conduct of the Businesses. The P66 Parties covenant and agree that from and after the execution of this Agreement and until the Closing: (a) Except without the prior written consent of the Partnership, the P66 Parties will not, and will not permit any of the Contributed Entities to, sell, transfer, assign, convey or otherwise dispose of any of the Contributed Interests or, with respect to MSLP, the MSLP Assets; (b) the P66 Parties will not, and will not permit the Contributed Entities to, permit any Lien to be imposed on the Contributed Interests, other than Permitted Liens ; (c) the P66 Parties will not, and will not permit the Contributed Entities to, make, vote for or authorize any capital commitments or other expenditure commitments that will require any P66 Party, any Contributed Entity or the Partnership to make a capital contribution or other expenditure in respect of the Contributed Interests, MSLP or the JV Entities, except (i) as previously disclosed to the Partnership prior to the date hereof, (ii) to the extent such authorization is already granted and documented within the existing governance documents and delegations of authority of the applicable JV Entity or (iii) as set forth on Schedule 6.01(ain the approved budgets of the JV Entities provided to the Partnership by the P66 Parties; and (d) except as expressly provided in this Agreement, the P66 Parties will not, and will not permit the Contributed Entities to, agree to, consent to, promote, or vote in favor of (or not vote, if the effect of a failure to vote is a vote in favor of), from or, to the date hereof until extent they have such authority, permit the Closing Date, Seller shall use its commercially reasonable efforts operator of the JV Entities to carry on conduct the Businesses according to their business of the JV Entities in a manner not in the ordinary course of business and substantially in the same manner as currently conducted, to keep available the services of their officers and employees, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships consistent with past practices or do any of the Businesses with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Buyer, on and after the Closing Date, the Businesses and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders in clauses (or other equityholders, as applicable), in each case prior to the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. (ba) From the date hereof until the Closing Date, except as otherwise expressly provided for by this Agreement, or consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller (i) shall not, and shall not permit the Company or the Sold Subsidiaries to, take any action which, if taken after the date of the Latest Balance Sheet, would be required to be disclosed on Schedule 4.07 pursuant to Section 4.07 and (ii) shall cause the Company and the Sold Subsidiaries to make, capital expenditures in an aggregate amount of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending on the Closing Date (pro-rated for any partial months during such period). through (c) The foregoing provisions of this Section 6.01 notwithstanding: (i) prior beyond what such operator is already authorized and delegated to do pursuant to the Closing, Seller shall transfer, convey existing governance documents and deliver, or shall cause delegations of authority of the transfer, conveyance and delivery of, all right, title and interest to each Excluded Subsidiary to Seller (the "Excluded Subsidiary Transfer") (andapplicable JV Entity. However, in connection with case of emergency, the Excluded Subsidiary TransferP66 Parties are permitted to take, Seller may, in its sole discretion, change vote for and/or authorize all necessary and reasonable actions to resolve the corporate form, or cause to be changed emergency situation and then promptly inform the corporate form, Partnership of any Excluded Subsidiary, and the form of any such change shall be in the sole discretion of Seller); and (ii) prior to the Closing, H&H Group and Seller shall, and shall cause the Company and the Sold Subsidiaries to, consummate the Reorganization Transactionssame.

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a), Western and WRSW covenant and agree that from the date hereof until the Closing Date, Seller shall use its commercially reasonable efforts to carry on the Businesses according to their ordinary course of business and substantially in the same manner as currently conducted, to keep available the services of their officers and employees, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships of the Businesses with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Buyer, on and after the Closing Date, the Businesses execution of this Agreement and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders (or other equityholders, as applicable), in each case prior to until the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. except (bi) From the date hereof until the Closing Date, except as otherwise expressly provided for contemplated by this AgreementAgreement (including any Internal Reorganization Transactions), (ii) as required by applicable Law or consented to in writing by Buyer (iii) with the prior written consent of the Partnership (which consent shall not be unreasonably withheld, conditioned or delayed)): (a) Neither Western nor WRSW will, Seller (i) shall not, and shall not nor will they permit the Company or the Sold any of Western’s other Subsidiaries to, take sell, transfer, assign, convey or otherwise dispose of any action which, if taken after the date of the Latest Balance SheetContributed Interests or Wholesale Assets, would be required other than the sale of inventory in the ordinary course of business consistent with past practice; (b) Each of Western and WRSW will, and will cause each of their respective Affiliates to, use commercially reasonable efforts to be disclosed on Schedule 4.07 pursuant to Section 4.07 maintain the applicable Wholesale Assets in such working order and (ii) shall cause the Company and the Sold Subsidiaries to make, capital expenditures in an aggregate amount of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending on the Closing Date (pro-rated for any partial months during such period).condition as is consistent with past practice; (c) The foregoing provisions Each of this Section 6.01 notwithstanding:Western and WRSW will, and will cause each of their respective Affiliates to, use commercially reasonable efforts to, conduct the Business in the ordinary course consistent with past practices; (id) prior Each of Western and WRSW will, and will cause each of their respective Affiliates to, use commercially reasonable efforts to, preserve its relationships with customers, suppliers, licensors, licensees, advertisers, distributors, shippers and others having business dealings relating to the ClosingBusiness; (e) Neither Western nor WRSW will, Seller shall transfernor will they permit their respective Affiliates to, convey and deliverpermit any Lien to be imposed on the Wholesale Assets, other than Permitted Liens, or shall cause the transferContributed Interests; (f) Neither Western nor WRSW will, conveyance and delivery ofnor will they permit their respective Affiliates to, all rightaccelerate, title and interest to each Excluded Subsidiary to Seller (delay or postpone the "Excluded Subsidiary Transfer") (and, in connection with the Excluded Subsidiary Transfer, Seller may, in its sole discretion, change the corporate form, or cause to be changed the corporate form, payment of any Excluded Subsidiary, and Liabilities or the form collection of any such change shall be payment, related to the Business or the Wholesale Assets that are, individually or in the sole discretion of Seller)aggregate, material; and (iig) Neither Western nor WRSW will, nor will they permit their respective Affiliates to, amend, modify or terminate any Material Contract, or otherwise waive, release or assign any rights, claims or benefits thereunder, or enter into any Contract that, if entered into prior to the Closingdate of this Agreement, H&H Group and Seller shall, and shall cause the Company and the Sold Subsidiaries to, consummate the Reorganization Transactionswould constitute a Material Contract.

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a)During the Pre-Closing Period, from the date hereof until the Closing Date, Seller shall use its commercially reasonable efforts advise the Purchaser promptly following any material developments or changes, if any, with respect to carry on the Purchased Assets, collectively, any Product or any Business. (b) During the Pre-Closing Period, except (x) as otherwise expressly required or permitted hereunder or (y) with the prior written consent of the Purchaser, the Seller shall: (i) subject to Section 5.3, operate the Businesses according to their ordinary course of business and substantially only in the same manner as currently conductedOrdinary Course of Business, to keep available the services of their officers and employeesconsistent with past practices, to maintain and preserve intact the Businesses in all material respects and to maintain in all material respects the ordinary and customary relationships of the Businesses with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Buyer, on and after the Closing DatePurchased Assets, the Businesses Products and the goodwill associated therewith; providedBusinesses, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand to repay any Indebtedness or make any distribution to their stockholders (or other equityholders, as applicable), in each case prior to the Closingand, to the extent any such distribution of Cash on Hand would not cause that the Company Seller currently has or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Law. (b) From the date hereof until the Closing Date, except as otherwise expressly provided for by this Agreement, or consented to currently purchases wholesale data in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller (i) shall not, and shall not permit the Company or the Sold Subsidiaries to, take any action which, if taken after the date support of the Latest Balance SheetProduct, would be required to be disclosed on Schedule 4.07 pursuant to Section 4.07 and (ii) shall cause the Company and the Sold Subsidiaries to make, capital expenditures in an aggregate amount of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending on the Closing Date (pro-rated for any partial months during such period). (c) The foregoing provisions of this Section 6.01 notwithstanding: (i) prior to the Closing, Seller shall transfer, convey and deliver, or shall cause the transfer, conveyance and delivery of, maintain such wholesale data arrangements in all right, title and interest to each Excluded Subsidiary to Seller (the "Excluded Subsidiary Transfer") (and, in connection with the Excluded Subsidiary Transfer, Seller may, in its sole discretion, change the corporate form, or cause to be changed the corporate form, of any Excluded Subsidiary, and the form of any such change shall be in the sole discretion of Seller)material respects; and (ii) prior take such actions as may be necessary to satisfy the Seller’s covenants hereunder (including the delivery to the Closing, H&H Group and Seller shall, and shall cause Purchaser of the Company Purchased Assets pursuant to the terms hereof) and the Sold Subsidiaries conditions to the Purchaser’s obligations hereunder. (c) During the Pre-Closing Period, except (x) as otherwise expressly required or permitted hereunder or (y) with the prior written consent of the Purchaser, the Seller shall not: (i) fail to take, or delay taking, such actions as may be necessary to satisfy the Seller’s covenants hereunder (including the delivery to the Purchaser of the Purchased Assets pursuant to the terms hereof) and the conditions to the Purchaser’s obligations hereunder; (ii) except for breaches and defaults of the type referred to in Section 365(b)(2) of the Bankruptcy Code, perform in all material respects all of its obligations under all Assumed Contracts and other Contracts relating to or affecting any Purchased Asset or any Business; (iii) enter into any material Contracts relating to any Purchased Asset or any Business; (iv) terminate, amend or waive any rights under any Assumed Contract or fail to exercise any right of renewal thereunder; (v) change the price at which the Seller sells each Product; (vi) transfer, or grant any rights or options in or with respect to, consummate any of the Reorganization TransactionsPurchased Assets, except for the transfer of Inventory in the Ordinary Course of Business consistent with past practice; (vii) make any claims or demands for breach against any party to any of the Assumed Contracts, or threaten to take any such action; (viii) take any action that could directly or indirectly impair in any material respect any rights that the Purchaser or any of its Affiliates may have hereunder or under any Other Agreement; or (ix) commit or agree to take, whether or not in writing, any of the actions specified in this Section 5.3(b).

Conduct of the Businesses. (a) Except as set forth on Schedule 6.01(a), from From the date hereof until Execution Date through the Closing Date, Seller except as expressly contemplated by the terms of this Agreement, PEC shall cause each of the Plant Owners to (i) conduct its business in the ordinary course of business consistent with past practice in all material respects and in compliance in all material respects with Applicable Law, (ii) use its commercially reasonable efforts to carry on the Businesses according to their ordinary course of preserve intact its business organization and substantially in the same manner as currently conductedgoodwill, to keep available the services of their officers its present officers, employees and employeesindependent contractors, to maintain and preserve intact the Businesses in all material respects goodwill and to maintain in all material respects the ordinary and customary business relationships of the Businesses with its customers, suppliers, customerslicensors, distributors licensees and others having business relationships with it with a view toward preserving for Buyerit, on and after (iii) not take any action which would adversely affect or delay in any material respect the Closing Date, the Businesses and the goodwill associated therewith; provided, however, that, the foregoing notwithstanding, the Seller, Company and its Subsidiaries may use all available Cash on Hand ability of either ACEC or Pacific Aurora to repay obtain any Indebtedness or make necessary approvals of any distribution to their stockholders (regulatory agency or other equityholders, as applicable), in each case prior to Governmental Entity required for the Closing, to the extent any such distribution of Cash on Hand would not cause the Company or any Sold Subsidiary to violate any "minimum capital" requirements under applicable Lawtransactions contemplated hereby. (b) From the date hereof until Execution Date through the Closing Date, except as otherwise expressly provided for contemplated by the terms of this Agreement, ACEC shall (i) conduct its business in the ordinary course of business consistent with past practice in all material respects and in compliance in all material respects with Applicable Law, (ii) use commercially reasonable efforts to preserve intact its business organization and goodwill, keep available the services of its present officers, employees and independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with it, and (iii) not take any action which would adversely affect or consented delay in any material respect the ability of either PEC or Pacific Aurora to in writing obtain any necessary approvals of any regulatory agency or other Governmental Entity required for the transactions contemplated hereby. (c) Without limiting the generality of subsections (a) and (b) immediately above, from the Execution Date through the Closing Date, except as expressly contemplated by Buyer the terms of this Agreement or as required by Applicable Law, PEC shall cause the Plant Owners not to do, and ACEC shall not do, any of the following outside of the ordinary course of business consistent with past practices without the prior written consent of the other parties to this Agreement (which consent consents shall not be unreasonably withheld, conditioned or delayed), Seller (i) shall not, and shall not permit the Company or the Sold Subsidiaries to, take any action which, if taken after the date of the Latest Balance Sheet, would be required to be disclosed on Schedule 4.07 pursuant to Section 4.07 and (ii) shall cause the Company and the Sold Subsidiaries to make, capital expenditures in an aggregate amount of at least seventy-five percent (75%) of the total dollar amount of budgeted capital expenditures contemplated by the Capital Expenditure Budget for the period commencing on the date hereof and ending on the Closing Date (pro-rated for any partial months during such period). (c) The foregoing provisions of this Section 6.01 notwithstanding:): (i) prior alter (through merger, liquidation, reorganization, restructuring or in any other fashion) its corporate structure or ownership, or enter into any agreement with respect to the Closing, Seller shall transfer, convey and deliver, voting of its capital stock or shall cause the transfer, conveyance and delivery of, all right, title and interest to each Excluded Subsidiary to Seller other securities (the "Excluded Subsidiary Transfer") (and, in connection with the Excluded Subsidiary Transfer, Seller may, in its sole discretion, change the corporate form, or cause to be changed the corporate form, of any Excluded Subsidiary, and the form of any such change shall be in the sole discretion case of SellerACEC, solely in any way that would adversely affect ACEC’s obligations under this Agreement with respect to the Contributed Assets); and; (ii) prior acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets other than in the ordinary course of business consistent with past practice (in the case of ACEC, solely in any way that would adversely affect ACEC’s obligations under this Agreement with respect to the ClosingContributed Assets); (iii) sell, H&H Group and Seller shallpledge, and shall cause assign, dispose of, transfer, lease, securitize, or encumber any businesses, properties or assets (in the Company and case of ACEC, any of the Sold Subsidiaries toforegoing solely with respect to one or more Contributed Assets); (iv) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it by any Applicable Law or under any order, consummate settlement agreement or judgment (in the Reorganization Transactionscase of ACEC, with respect to its ownership or operation of the Contributed Assets); (v) terminate, cancel, amend or modify any material insurance coverage policy which is not simultaneously replaced by a comparable amount of insurance coverage (in the case of ACEC, any of the foregoing with respect to any of the Contributed Assets); or (vi) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.